For the Week of: 1/24/2010 Fourth Circuit affirms ruling that Virginia death row inmate failed to prove he is mentally retarded. On January 27, 2010, the Fourth Circuit (Shedd with Traxler; Gregory concurring in part and dissenting in part) affirmed the district court’s rejection of Darick Walker’s Atkins claim. Walker v. Kelly. Virginia law precluded Walker from raising the claim in state court so it was subject to de novo review. Because the question of mental retardation is one of fact, however, the district court’s finding was reviewed for clear error. The panel majority found no need to address the first prong of the mental retardation definition, significantly subaverage intellectual functioning, given its conclusion that the district court did not clearly err in ruling that Walker failed to establish the requisite adaptive deficits. The panel began its analysis by looking to the evidence about Walker’s conceptual adaptive skills. While Walker presented evidence about his difficulties with reading and writing, his reliance on others to negotiate the basics of everyday life, and his lack of direction, the Commonwealth “focused on Walker’s extensive criminal history as evidencing his conceptual abilities.” For example, the Commonwealth’s expert pointed to a crime of fraud committed by Walker that allegedly involved planning and consideration of various contingencies, as well as Walker’s initial denial of involvement in an armed robbery but his later shift in position in response to additional information provided by investigating officers. Transcripts were also introduced by the Commonwealth where Walker was able to testify to historical events and even correct prosecutors as to the time line of his various arrests. Finally, the Commonwealth challenged Walker’s claim to be unable to read and write. Next addressed was the evidence concerning adaptive social skills. Walker presented evidence of his difficulties maintaining appropriate relationships with his peers. The Commonwealth responded by pointing to a school record where Walker’s mother claimed that her son had plenty of friends and was active in sports, church and speaking with adults. It also noted a psychiatric evaluation which recounted assertions by Walker and his mother that Walker got along with neighborhood kids. Additional school records corroborated Walker’s purported ability to act appropriately in the classroom and with his peers. The Commonwealth’s expert also relied on reports by prison officials about their interactions with Walker. In addition, the expert “noted Walker’s ability to ingratiate himself to women and establish intimate relationships with them in a relatively short period of time as evidence of his social skills.” Turning to practical skills, Walker presented evidence that he was unable to perform basic tasks such as renting an apartment, managing money, paying bills, obtaining a driver’s license, taking public transportation, following directions, or maintaining steady employment. The Commonwealth, in turn, looked to testimony by Walker that showed his ability to remember addresses, his ability to make his way from place to place and his ability to drive. There was also evidence that Walker could use a pager and rent a hotel room. Further, a girlfriend reported that Walker cared for her child, cleaned her apartment and prepared meals. As for his employment history, the Commonwealth’s expert noted the absence of evidence that Walker was ever terminated from a job due to his inability to perform the required duties. Finally, Walker’s hygiene in prison and his hand washing of his clothing was considered as evidence of adaptive practical skills. Walker had presented four experts who found that Walker exhibited significant skills limitation. The Commonwealth’s expert disagreed. Regarding the defense experts’ reliance on an ABAS-II, the Commonwealth’s expert contended that this was not “sound practice.” Ultimately, the district court apparently credited the Commonwealth’s expert. In finding that Walker failed to meet his burden of proof, the district court stated, inter alia: “Petitioner has committed various crimes requiring the ability to relate to others, associated himself with women on a personal and intimate level, engaged in homemaking activities, seduced under-aged girls, used others to help him avoid authorities, independently invoked his Miranda rights, used his brother’s identity to obtain a driver’s license, and obtained goods for himself while in prison.” The panel was unable to find that the district court’s conclusion that Walker had failed to prove he was mentally retarded, though not necessarily compelled by the evidence, was clearly erroneous. The panel was unpersuaded by Walker’s contention that the judgment must be reversed because mentally retarded individuals are capable of exhibiting many of the skills that the district court relied on when it made its finding that he is not mentally retarded. The panel also rejected Walker’s argument that he was entitled to a jury determination of his mental retardation. Dissenting in part, Judge Gregory found serious errors by the district court in its consideration of Walker’s Atkins claim including violations of Walker’s right to procedural due process. In Gregory’s view, a remand is required to allow proper consideration of the Atkins claim.

For the Week of: 1/17/2010 Supreme Court affirms denial of habeas relief to Alabama death row inmate On January 20, 2010, the Supreme Court issued its decision in Wood v. Allen, affirming the Eleventh Circuit’s ruling that Wood was not entitled to habeas relief on his claim of ineffective assistance of counsel at sentencing. The majority opinion was authored by Justice Sotomayor. Justice Stevens, joined by Justice Kennedy, dissented. Although the first question on which certiorari was granted concerned the relationship between 28 U.S.C. §§2254(d)(2) and (e)(1), the Court determined that once again it was not necessary to resolve how the sections related to each other. Wood’s position had been that when a petitioner seeks relief based entirely on the state-court record, a federal court reviews the state court’s factual findings for reasonableness under §2254(d)(2). Section 2254(e)(1) would only come into play, according to Wood, where a petitioner challenged individual state court factual findings based in part on evidence that was extrinsic to the state-court record. Alabama, in contrast, contended that §2254(e)(1) applies to any challenge to a state court’s factual findings under §2254(d)(2), including a challenge based solely on the state-court record. Even accepting Wood’s interpretation of the provisions, the majority concluded that he could not prevail. The state court had made a factual finding that trial counsel made a strategic decision not to pursue or present evidence of Wood’s mental deficiencies at the sentencing phase of the trial. In the majority’s view, this finding was not an unreasonable determination of the facts in light of the evidence before the state court. The record revealed that all three of Wood’s trial attorneys had read a report prepared by a mental health expert who had evaluated Wood at counsel’s request. Although the report noted intellectual deficiencies, it also referenced negative information such as Wood’s 19 earlier arrests, as well as Wood’s prior attempt to murder an ex-girlfriend. (The victim in the capital case was another ex-girlfriend.) Counsel successfully kept from the jury the negative information in the report. The least experienced attorney, who was chosen to handle the sentencing phase, testified that one of the highly experienced attorneys had informed him that nothing in the report merited further investigation. This testimony was corroborated by letters written by the young lawyer at the time of trial. The young lawyer had also informed the trial court that the defense would not be introducing the mental health report for the jury’s consideration. The majority found: “This evidence in the state-court record can fairly be read to support the Rule 32 court’s factual determination that counsel’s failure to pursue or present evidence of Wood’s mental deficiencies was not mere oversight or neglect but was instead the result of a deliberate decision to focus on other defenses.” The majority acknowledged that Wood did cite some record evidence that plausibly could be read as being inconsistent with the determination that a strategic decision had been made by Wood’s attorneys not to pursue intellectual deficiency evidence. Such evidence, however, was inadequate to render the state court finding “unreasonable.” Other evidence pointed to by Wood, according to the majority, went to the independent question of whether the strategic decision counsel made was itself reasonable. But the issue of whether the state court unreasonably applied Strickland under §2254(d)(1) would not be addressed by the Court because it was not “fairly included” in the questions presented in Wood’s certiorari petition.

Sixth Circuit affirms denial of Ohio death row inmate’s habeas petition. On January 19, 2010, the Sixth Circuit (Boggs with Batchelder; Gilman concurring separately) affirmed the denial of Steven Smith’s habeas petition. Smith v. Bradshaw. The first claim addressed by the panel was an alleged Griffin violation by the prosecutor, i.e., an impermissible comment on Smith’s failure to testify. The panel found that the claim was procedurally defaulted due to the absence of a contemporaneous objection. Smith’s argument that the state courts did not regularly enforce the objection rule was foreclosed by circuit precedent. Smith could not overcome the default through a claim of ineffective assistance of counsel because, according to the panel, Smith could not “show that counsel’s failure to object to this one comment—thereby drawing attention to it—was deficient.” Smith next challenged the sentencing instructions, claiming that they violated Caldwell v. Mississippi by wrongly suggesting that the jury was required to unanimously reject the death penalty rather than unanimously find it was the appropriate sentence. (Under Ohio law, a single juror may prevent a death sentence from being imposed.) This claim was also found to be procedurally defaulted due to trial counsel’s lack of objection to the instructions at issue. The panel reviewed de novo Smith’s claim that the default was excused by trial counsel’s ineffectiveness even though the state court had rejected the gateway ineffectiveness claim on the merits. See Girts v. Yanai, 501 F.3d 743, 753 (6th Cir. 2007). Looking at the actual instructions, the panel concluded that counsel did not perform deficiently by not objecting because the instructions in fact were not misleading. In the panel’s view, the instructions “unmistakably informed the jury that the death penalty must be endorsed by every juror, and thus that one juror could prevent it.” Although Smith was entitled to an additional “solitary juror” instruction under state law, counsel’s failure to request it did not prejudice Smith in light of the instructions the jury did receive. Smith’s final claim was that the trial court erred in refusing to instruct the jury on involuntary manslaughter. At issue was whether a reasonable jury could have concluded that Smith lacked the intent to kill the victim due to his intoxication. The lead opinion rejected Smith’s contention that the state court’s denial of this claim was contrary to Beck v. Alabama. Although the state opinion was “not ideal,” the state court did properly recite the Beck rule and its analysis was consistent with Beck. Nor did the state court unreasonably apply Beck. The repeated violent conduct directed at the victim supported a finding of intent to kill. Smith’s intoxication evidence, “which was not connected to any testimony that [Smith] was too drunk to form any intent,” did “not allow a juror rationally to acquit [Smith] of aggravated murder.” The lead opinion noted that Smith’s defense was not that he intended only to molest the victim. Rather, his basic position at trial was that no molestation occurred. Although it was certainly possible that Smith did not harbor the intent to kill required for a finding of aggravated murder, the lead opinion concluded that what Smith sought from the jury “would be a leap of faith, not an inferential leap based on evidence.” Finally, even assuming that the state court’s Beck analysis was unreasonable, the claim would fail under de novo review because Smith’s “evidence of intoxication was insufficient as a matter of state law to negate intent to kill.” Under state law applicable at the time of Smith’s conviction, voluntary intoxication could only create a reasonable doubt as to the defendant’s intent to kill where the defendant was so intoxicated as to be mentally unable to intend anything at all. The lead opinion recounted evidence in the record showing that Smith was capable of formulating some intent. Although Judge Gilman concurred in the majority opinion, he wrote separately to express his concerns “regarding the Ohio Supreme Court’s analysis of the issue of the lesser-included-offense jury instruction under Beck v. Alabama, 447 U.S. 625 (1980).” First, in Gilman’s view, the state court mistakenly implied that Smith’s failure to present evidence that he intended something other than to kill the victim was relevant to the Beck analysis. Second, Gilman found that the state court improperly utilized a sufficiency of the evidence test in evaluating the Beck claim. Then, looking to the record, Gilman concluded that there was “some doubt,” see Beck, 447 U.S. at 637, of Smith’s intent to kill [the victim] in light of his extreme intoxication, his lack of motive to kill [the victim], his taking [the victim’s] body to [her mother] after the incident, and the nature of [the victim’s] injuries.” Gilman agreed, however, with the lead opinion’s conclusion that this was insufficient to entitle Smith to habeas relief in light of then-existing state law.

For the Week of: 12/20/2009 Eleventh Circuit affirms the denial of Florida death row inmate’s habeas petition. On December 22, 2009, the Eleventh Circuit (per curiam - Edmondson, Marcus, Pryor) issued a short opinion affirming the denial of Richard Randolph’s habeas petition. Randolph v. McNeil. The district court had denied Randolph a COA on any of his claims. The Eleventh Circuit, however, granted a COA on four issues: (1) ineffective assistance of counsel, (2) improper juror removal, (3) the presentation of non-statutory aggravating factors to the jury, and (4) prejudicial closing argument. Regarding counsel’s performance at the guilt-innocence phase of the trial, Randolph alleged that counsel was deficient in conceding his guilt and not raising a voluntary intoxication defense. Without discussion, the panel announced that the determination by the state courts that counsel acted reasonably was not “contrary to clearly established federal law.” As for the penalty phase of the trial, Randolph cited to Wiggins and argued that his trial attorney failed to adequately investigate his history. The panel “assume[d] for argument´s sake that defense counsel performed unprofessionally and that Wiggins applie[d].” It nevertheless concluded that Randolph was not entitled to relief given his failure to present new evidence that the jury had not heard. According to the panel, Randolph merely complained about how and when information was conveyed to the jury. The panel therefore found: “Given the evidence that did go to the jury, the state courts´ conclusion that no reasonable probability has been shown that, but for Randolph´s lawyer´s lack of investigation, the trial court would have failed to sentence Randolph to death is a reasonable application of clearly established federal law.” Randolph alleged that his constitutional rights were violated when the trial court excused a juror who gave conflicting answers about her ability to return a death sentence. The panel found that Randolph failed to meet the clear and convincing standard required for a federal court to disturb the state court credibility determination. The third claim considered on appeal concerned the alleged improper interjection of non-statutory aggravation into the case by the prosecutor when he questioned Randolph’s girlfriend during the guilt phase about whether Randolph had shown remorse. Noting, among other things, that by the time of sentencing there was evidence that Randolph regretted his actions, the panel disposed of this claim through application of harmless error analysis. It concluded: “When weighed against all the evidence of the four statutory aggravating factors properly considered by the jury, that a substantial and injurious effect or influence arose from Randolph´s girlfriend´s single statement is by no means clear. We cannot overturn the state court´s decision because it is not contrary to or an unreasonable application of clearly established federal law.” Finally, Randolph argued that his constitutional rights were violated by the prosecutor’s remark during closing argument about putting a family’s pet to sleep. Although no objection was made to the comment, Randolph argued that his appellate attorney was ineffective in not raising a misconduct claim on appeal. As to the alleged misconduct, the panel found that “Randolph fail[ed] to present argument or evidence that would justify [the panel] overturning the state court conclusion that the statement did not infect the trial with unfairness.” Further, the state court determination that appellate counsel was not ineffective in failing to raise the misconduct claim “was not contrary to or an unreasonable application of clearly established federal law.”

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